Category Archives: Workers’ Compensation

Workers’ Comp Covers Work-Related Motor Vehicle Accidents

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car accidentDo you drive a company vehicle as part of your job?

Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job.

In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.

More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to.

It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.

If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.

OSHA Enforcement Cases Involving Temps On the Rise

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Today’s post was shared by Gelman on Workplace Injuries and comes from ohsonline.com

I am so glad to see that temporary workers are being included more in OSHA enforcement. It is just frustrating that it took an injury to a worker in New Jersey for one of the companies in the article below to be inspected through “a referral from the Maplewood Fire Department,” according to the article.

Our firm’s blog has included articles focused on temporary workers and their special challenges when it comes to workers’ compensation in 2012 and earlier this year.

The short article below that is today’s focus came from a business and industry publication, so I think it serves to put its readers on notice for OSHA’s renewed focus “on the safety of temporary workers.”

Generally speaking (with exceptions for some agricultural jobs), temporary workers qualify for workers’ compensation, though that coverage does not replace wages from your main job if the temporary job is a second job. Workers’ compensation laws and systems vary by state, so if you or a loved one is injured on the job, please speak with an experienced workers’ compensation attorney about your specific situation.

Today’s post shared from OshOnLine.com illustrates a new enforcement effort by OSHA that will improve the work environment for all Americans.OSHA’s emphasis on the safety of temporary workers is being driven home by a series of enforcement actions. The latest case announcement on June 19 involved the Macon, Ga., facility of a company named California Cereal Products Inc., which OSHA has cited for exposing full-time and temporary workers to electrical, fall, and noise hazards, with proposed penalties totaling $40,600. OSHA opened an inspection last December based on a complaint.

“The employer has failed to protect full-time and temporary workers from easily identified workplace hazards that can result in death or permanent disability,” said Bill Fulcher, director of OSHA’s Atlanta-East Area Office.

The case against beverage bottling company Maplewood Beverage Packers LLC and temporary employment agency Corporate Resource Services Corp. in Elizabeth, N.J., also began with a December 2013 investigation, but it started with a referral from the Maplewood Fire Department after a temporary worker was injured falling from a ladder. OSHA has proposed $182,270 in penalties. “Host employers and staffing agencies are jointly responsible for ensuring worker safety and health,” said Kris Hoffman, director of OSHA’s Parsippany Area Office. “Employers must protect all workers from job hazards-both permanent and temporary workers.”

[Click here to see the rest of this post]

Workers’ Compensation Benefits: Iowa vs. Nebraska Law

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The workers’ compensation benefits under Iowa law for permanent injuries are typically greater than those available under Nebraska law. As such, finding a way to bring a claim under Iowa law can be of primary importance if there is a potential jurisdictional issue between the two states.

Iowa Code 85.71 provides the framework for helping to resolve this issue. Put simply, an injury that occurs inside the borders of Iowa is most likely going to qualify to be brought under Iowa law. However, even injuries that occur outside the borders of Iowa can still be covered under Iowa law in certain common instances as detailed below:

1. The employer has a place of business in Iowa and:
       a. the employee regularly works at or from that location;
       b. the employee lives in the state of Iowa.

2. The employee is working under a contract of hire made in Iowa, and the employee regularly works in Iowa.

3. The employee is working under a contract of hire made in Iowa and sustains an injury for which no remedy is available under the workers’ compensation laws of another state.

4. The employer has a place of business in Iowa, and the employee is working under a contract of hire that provides that the employee’s workers’ compensation claims will be governed by Iowa law. 

An injured employee also needs to be careful about filing in a different state than Iowa. Under Iowa Code 85.72, the Iowa action will be stayed pending the resolution of that claim in another state. This means that the Court cannot take up any issues in Iowa while there is another pending legal action in another state concerning the same date of injury.

The difference in benefits between the two states can amount to tens of thousands of dollars. Additionally, there are a number of differences in the laws of the two states that can play a role in how the claim is handled, including the appropriate statute of limitations, which dictates how soon a claim must be filed in Court. As such, it’s important to contact an attorney licensed in Iowa and Nebraska to discuss these differences so we can help you decide which state’s law is better for you and to help you navigate the relative pitfalls in each state.

Why We’re Still Killing Workers in the USA

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Today’s post comes from guest author Jay Causey, from Causey Law Firm in Seattle. Mr. Causey writes about some important issues in workers’ compensation with a focus on the oilfields of North Dakota. This is especially striking because both Nebraska and Iowa have sandpits that supply the sand used in fracking, so some workers here face the same challenges with silica that workers in North Dakota do. Please go to this previous blog post, Proposed Silica Standard Needs to Be Strengthened, for more information about issues with silica.

I find the AFL-CIO’s report extremely interesting but also frustrating because so many workers are still dying on the job. Members of Rehm, Bennett & Moore will be writing occasional blog posts from the annual report on job fatalities in the coming months. Posts will include a focus on Iowa and/or Nebraska or a big-picture commentary on the state of workers in the nation these days.

I appreciate Mr. Causey’s work in bringing this report to promote both thought and action for increased worker safety. One point that comes to mind is that Mr. Causey writes, “the vast majority of the states with the highest fatality rates contain the 8 million workers in states with no federally approved OSHA safety and health plan.” A contrast between Nebraska and Iowa’s workers’ compensation systems is that Iowa does have a federally-approved state plan and Nebraska does not. Visit https://www.osha.gov/dcsp/osp/stateprogs/iowa.html to get more information about Iowa’s state plan. Please contact a workers’ compensation attorney who is familiar with the laws in your state if you have specific questions.

The AFL–CIO’s annual report on job fatalities is out, and provides some interesting fodder for thought.

It’s no surprise that North Dakota – – with its “wild West” environment for oil and gas extraction on the Bakken Shale was the most dangerous place – – with 17.7 deaths per 100,000 workers versus the national average of 3.4.

Nationally, 4600 workers died on the job in 2012. While that number has fallen since safety laws were implemented in the 1970s, the decline has flat-lined over the most recent decade. It was 4.2 deaths per 100,000 workers in 2006, now still at 3.4 in 2012.

The AFL–CIO report contains maps that reflect part of the reason for the stall-out: the vast majority of the states with the highest fatality rates contain the 8 million workers in states with no federally approved OSHA safety and health plan. The report graphically portrays another salient fact: the number of federal OSHA inspectors per 1 million workers has fallen from a high of 15 in 1980 to 6.9 in 2013.  OSHA has been so underfunded over recent years that it would take an average of 139 years for available OSHA inspectors to visit each workplace in their jurisdiction just once. (In some states that number is even more staggering – – 521 years for South Dakota.)

The AFL-CIO report reflects some other interesting facts concerning the demographics of workplace fatalities – – not surprisingly, being foreign-born or Latino puts a worker at a higher risk of fatality, and homicide was the number one cause of death for women in the workplace in 2012.

But, getting back to the “oil patch” in North Dakota, we see other disturbing trends in the culture of workplace injury that accompany the decreasing application of safety regulation. With job growth tripling in North Dakota’s oil patch since 2007, while workers’ compensation filings are up, many injured workers are encouraged by employers in the extractive industries not to file, with many companies working out sidebar deals with injured workers. Injury rates are being kept artificially low by rewards for not reporting. As the AFL–CIO’s safety chief, Peg Semenario, has said, underreporting warps national safety figures in an industry that is already notoriously opaque.

And the culture of creating false indicators of workplace safety will likely have tremendous implications down the line when the 2000 tons of silica-rich sand used in the cement casing of each fracking well begins to work its way into workers’ lungs. NIOSH reported in 2012 that 92 of 116 air samples at franking sites exceeded the recommended safe levels of silica, which can lead to incurable, irreversible lung disease.

 

 Photo credit: Craig Newsom / Foter / Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)

Transitional ‘Light’ Duty Jobs: What Are They and Do I Have to Take One?

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When injured at work, your doctor may give you work restrictions that prevent you from returning to your regular job. In these situations, there are three things your employer can do:

  1. Tell you that they have no jobs within your restrictions
  2. Give you a transitional duty (or “light duty”) job within your restrictions
  3. Force you to work your regular job in violation of your restrictions

If it’s #3, call a lawyer immediately and inform your doctor that your employer is not following the doctor’s orders.

If it’s #1, you would be taken off work and you would be entitled to workers’ compensation benefits for temporary disability until you are released back to work or until your employer accommodates your work restrictions.

If it’s #2, it not always clear what the result will be. This “transitional duty” option is when your employer returns you to work but not at your normal job. Instead you are given a different, temporary job while you are on restrictions.

Problems arise with these transitional jobs when your hours are cut, your pay is cut, or you are asked to do a job that is unreasonable. Often, if you refuse to work a transitional duty job that is in your restrictions, you could forfeit your right to obtain work comp payments for temporary disability while you are on those restrictions and off work.

If the transitional duty job that is offered to you cuts your hours, you will probably be entitled to temporary disability payments in an amount to make up (somewhat) for the difference in what you were making before the incident that caused the injury and what you are now making in your transitional job.

Similarly, if your hourly rate or your wages for your transitional job are less than what you would have been earning before you were injured, you would again be entitled to temporary disability payments in an attempt to make up for the shortfall.

Where transitional duty jobs have a gray area is whether they are truly reasonable jobs that are being offered. For example, there are horror stories of employees working in the near dark for 8 hours per day or working in appalling conditions sorting paperclips for transitional duty. Whether or not you have to take a job like these horror stories without forfeiting your right to temporary disability payments depends on the facts of each specific case.

Click the link – it’s about a Walmart guy who had to do “light duty” in the bathroom for 7 hours a day: http://www.aol.com/article/2014/05/27/wal-mart-employee-claims-he-was-forced-to-spend-7-hour-shift-in/20893585/?icid=maing-grid7%7Chtmlws-main-bb%7Cdl28%7Csec1_lnk3%26pLid%3D481058

Generally speaking, however, if you are offered a transitional job within your restrictions, you should probably take that job unless you have a very good reason that you cannot. For example, in at least one Nebraska case, the court held that even having an employee relocate 300 miles for a temporary transitional job was considered a reasonable job offer. Even transitional jobs that are during different shifts than your normal shift may be considered reasonable. If a job is reasonable and you do not have a good reason for not accepting such a transitional job, you could be denied temporary benefits and be left without any pay at all while attempting to recover from your work injury.

If you have a job that sounds unreasonable, and you are contemplating whether or not you are required to accept such a job, contact a lawyer. An experienced lawyer will be able to give you a good idea of whether turning down such a job would allow your employer to deny you temporary disability payments or not.

Medical Care Politics in Worker’s Compensation

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Today’s post comes from guest author Thomas Domer, from The Domer Law Firm in Milwaukee. He writes about some perceptions that people have about injured workers and filing a workers’ compensation claim.

Although various blog authors who have been posted this year have put a focus on employer fraud, society through the media has put a big focus on employee fraud. No one lives in a vacuum, and for as many loved ones who support an injured worker’s right to compensation, there are also those folks who don’t understand how the system works or think that injured workers should just keep their heads down, suffering in silence and not going up against their employers.

But the reality is that, as I have said before, it’s better to have a good life than a good case. And if employers always did what they were supposed to in support of workers who were injured at their places of business, then the workers’ compensation process would be a lot less complicated, and injured workers would be helped a lot quicker, possibly with better long-term results.

If you or a loved one is hurt, keep in mind that loyalty to an employer in not making waves may be misplaced – be sure to focus on what’s important in the long term: the health of the injured worker and the well-being of their loved ones.

The mythology surrounding employee fraud in worker’s compensation is pervasive. Many of my clients begin their conversations with me indicating the following: “I’m not one of those folks faking their worker’s compensation claim.”  The exaggerated media publicity concerning employee fraud has also resulted in outright worker intimidation regarding filing a claim. I had this conversation today with a prospective client.

Attorney: Why didn’t you report the incident?
Client: I didn’t want to have that on my record.  Nobody will hire me if I have a worker’s comp injury.
Attorney: Why didn’t you seek medical treatment?
Client: I do not have insurance.
Attorney: Can you obtain insurance under the Affordable Care Act?
Client: You mean Obamacare?  No way!

Fear of being stigmatized as a complainer, whiner, or simply a recipient of worker’s compensation benefits has prompted many legitimately injured workers from filing a worker’s compensation claim.

The adverse publicity concerning the Affordable Care Act (and its pejorative popular name “Obamacare”) results in many otherwise qualified workers from obtaining the health care they need, especially when denied by a worker’s compensation insurance carrier. 

The politics of medical care intrudes in the worker’s compensation arena daily.

What’s the Connection Between Worker Safety, Employer Profit, and Voting?

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A recent newspaper article about a Nebraska lawyer fighting against imposing OSHA regulations on small businesses and farms that handle grain illustrates an age-old conflict between Worker (human) safety and Business (corporate) profit. The lawyer argued OSHA compliance is too expensive for small businesses and farms.

I couldn’t disagree more. From my point of view, worker safety is immeasurably more valuable to society than business profit. Human beings are the most important component of any activity, including business. Viewing safety as a cost ignores the cost to the human beings who are burned and maimed by grain explosions, whether they happen at a small business/farm or a huge corporate grain facility.

Farms in Nebraska and Iowa are not required to provide workers’ compensation for their employees. This is justified on the grounds that farms can’t survive such government intervention. I find this an interesting argument from businesses that have long received subsidies from the government. It seems that farm profits are more important than the human beings who do the work to earn those profits.

Our society needs more laws to protect human beings from injury and to compensate them if injured for the profit of others. Candidates for public office need to be asked what matters more to them: Is it human beings or profits that matter more?

Justice Louis Brandeis of the U.S. Supreme Court wrote long ago: “We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”  

If we keep electing representatives who favor the concentrated wealth, then human beings will likely be protected less. These are scary times as the divide between the “haves” and “have nots” continues to grow. Ballots are the only way to tell our representatives that the health and welfare of human beings is paramount. Voting is essential, or we will see more and more concern for profit and less and less concern for human beings.

Examining the Reality of Workers’ Memorial Day

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We write this blog post to bring attention to an article that was a big dose of perspective about all the recent Workers’ Memorial Day celebrations. The official day is April 28 for Workers’ Memorial Day, and many groups spend a lot of effort in organizing events, discussing safety, and holding memorials. Unfortunately, as the article points out, those efforts don’t always translate into safer workplaces and fewer fatalities.

What Karen C. Yotis and Robin E. Kobayashi did was talk to “a few thought leaders in the workplace safety arena” to get the reality of the situation by asking the question: “Has worker safety improved at all during the past year?” The experts they spoke with included “Tammy Miser, Founder/Executive Director of United Support & Memorial For Workplace Fatalities; Kim Bobo, Executive Director for Interfaith Worker Justice; Charles R. ‘Chuck’ Davoli, 2014 President of Workers’ Injury Law & Advocacy Group and a Louisiana Workers Advocate; and Rebecca Shafer, attorney, author, and a workers’ compensation/risk management maven who has spent her professional life advocating for safe workplaces.”

There is often a disconnect between thought and reflection and then taking action to change a situation. The blog post treads into the waters of holding people and businesses accountable and also taking action that leads to long-term change in the form of safer work environments.

Attorneys Rod and Jon Rehm are members of WILG’s Board of Directors, which is currently led by Mr. Davoli, and the other attorneys at Rehm, Bennett & Moore are all members of WILG because of the group’s efforts towards both accountability for businesses and safety for workers.

While we urge you to read the entire blog post that’s linked to in the first paragraph, here are a couple of thought-provoking highlights.

First, it is striking that a “cost containment expert” like Ms. Shafer describes how businesses must focus on safety. Although it’s at the end of the linked article, Ms. Shafer’s commentary is excellent – the article says that she “speaks out so passionately on the employer’s obligation to keep an unrelenting focus on safety.” Here’s a partial quote that she gave to the article: “ … the bottom line is that each employer needs to make safety the #1 priority. … Until worker safety is TOP priority, a company will continue to have very little success in achieving a balanced workers’ compensation insurance program.” She writes about making safety a higher priority than profitability, but realistically, companies would be much more profitable if they were also much safer.

Finally, Mr. Davoli shared a list of “nine safety elements” for “the construction and building trades” that a Workplace Safety Task Force created in Louisiana with WILG’s help.

Here’s that excellent list:

“1. A designated safety budget as part of the normal operating budget.

 2. A formal safety committee that meets on a regular schedule.

 3. An employer that pays employees for the hours they spend attending voluntary off-duty safety training sessions.

 4. A formal personal protective equipment training program.

 5. Written and formal safety goals that are updated periodically.

 6. Safety training for subcontractors.

 7. Detailed safety reports to employees on a regular basis.

 8. Regularly scheduled safety training programs for existing employees.

 9. A disciplinary procedure for employees who commit unsafe acts.”

The reflection portion of Workers’ Memorial Day must turn to action. The reality is that until businesses buy into and change their work culture to be safe, there will always be a need to remember those who were killed at work.

Thanks to Ms. Yotis and Ms. Kobayashi for writing such an excellent piece.